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Appellate Division suggests a Ferreira conference may be required before a trial court can dismiss a case under the Affidavit of Merit Statute.

October 1, 2017
Trepkau v. St. Clare’s Hosp., 2017 N.J. Super. Unpub. LEXIS 2157 (App. Div.)

The plaintiff filed a complaint against the defendant/hospital and one of its emergency room nurses in which he alleged professional malpractice and ordinary negligence. After several failed attempts at filing a proper affidavit of merit, the trial court dismissed the plaintiff’s complaint with prejudice for failing to comply with New Jersey’s Affidavit of Merit Statute. The court held that the plaintiff, in serving an affidavit of merit from a licensed medical doctor rather than a registered nurse, failed to serve an affidavit of merit from an appropriately licensed professional.

On appeal, the Appellate Division reversed the dismissal with prejudice and remanded the case back to the trial court. In its reversal, the Appellate Division held that the trial court must conduct a proper Ferreira conference because it was unclear whether the initial Ferreira conference occurred or discussed the deficiencies in the plaintiff’s affidavit of merit. The Appellate Division also reversed the dismissal because the plaintiff’s count for ordinary negligence does not fall under the governance of the Affidavit of Merit Statute. Therefore, it should not have been dismissed due to a deficient affidavit.

Although this matter involves medical malpractice, the Appellate Division’s reversal and remand compelling the trial court to conduct a Ferreira conference impacts all licensed professionals who are covered under the Affidavit of Merit Statute. The courts have long held that, while a Ferreira conference can be held to discuss discovery issues and/or purported deficiencies in a plaintiff’s affidavit of merit, the court’s failure to conduct such a conference is not fatal to a motion to dismiss under the Affidavit of Merit Statute. The courts have stated that plaintiffs who assert professional malpractice do not have a right to a Ferreira conference; thus, the failure to conduct one is not a shield. In this matter, the Appellate Division’s ruling suggests that a Ferreira conference may be required before a trial court will dismiss a case under the Affidavit of Merit Statute.

 

Case Law Alerts, 4th Quarter, October 2017 Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Timothy R. Ryan
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(973) 618-4191
trryan@mdwcg.com

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